Canadian Submission
Office of the High Commissioner on Human Rights
Questionnaire on violence and women living with disabilities
Canada is pleased to contribute to the study currently being undertaken by the Office of the High Commissioner for Human Rights on violence and women living with disabilities. The following submission is not intended to be a comprehensive response, but provides a sampling of Canadian policy, legislation, and programs in this area.
Data/Statistics:
- Have studies been conducted on the prevalence, nature, causes and impact of VAW with disabilities in different settings? What forms of disability do they cover?
Yes, for example, Statistics Canada produced a report in 2009 entitled “Criminal Victimization and Health: A profile of victimization among persons with activity limitations or other health problems”(attached). Some information from that reports includes:
·In 2004, rate of violent victimization, including sexual assault, robbery and physical assault, was 2 times higher for persons with activity limitations than for persons without limitations.
·The personal victimization rate, which is violent victimization or theft of personal property, for persons with mental or behavioural disorder, was 4 times higher than the rate for persons with no mental disorder.
·Persons with activity limitations were 2 to 3 times more likely to be victims of the most severe forms of spousal violence, such as being sexually assaulted, beaten, struck or threatened with a weapon.
·Moreover, 51% of women with activity limitations had been victims of more than one violent crime during the 12 preceding months compared to 36% of women without limitations. There was no significant difference for men.
In addition, the Participation and Activity Limitation Survey (PALS) is a national survey designed to collect information on adults and children who have a disability, that is, whose everyday activities are limited because of a condition or health problem at
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The survey is funded by Human Resources Development Canada and conducted by Statistics Canada. PALS provides essential information on the prevalence of various disabilities, the supports for persons with disabilities, their employment profile, their income and their participation in society. PALS collects information about persons with disabilities whose everyday activities are limited because of a health-related condition or problem.
In the 2006 PALS survey, for all age groups, women were found to be more likely to have a disability related to pain or mobility. With the exception of the youngest age groups, this is also true for disabilities related to agility. Pain and discomfort-related activity limitations are much more common for working-age women than for men. 79.0% of working-age women with disabilities reported pain-related limitations, compared to 69.3% of working-age males with disabilities. Looking at the Canadian population as a whole, 9.5% of working-age women report activity limitations related to pain versus 7.6% of males.
A 2002 study by the Government of Canada entitled Family Violence and People with intellectual Disabilities at
found the following:
·Approximately 1% to 2% of Canadians have been given a diagnosis of intellectual disability. Many adults with intellectual disabilities live in poverty as a result of limited incomes.
·A more recent large-scale cohort study found that children with intellectual disabilities were 3.7 times as likely to experience neglect, 3.8 times as likely to experience physical and emotional abuse, and 4.0 times as likely to be sexually abused.
·73% of Canadian women with a variety of disabilities had experienced some form of violence and, of those, 96% had experienced sexual violence.
- Provide available data on the number of women and girls with disabilities who have accessed services and programmes to prevent and address violence in the past year. Is this information disaggregated by disability and other factors
From “Criminal Victimization and Health: A profile of victimization among persons with activity limitations or other health problems”:
·24% of victim service agencies in Canada were able to provide services to persons with disabilities. Despite the fact that disabled persons may face certain accessibility problems when seeking support services, the GSS revealed that 45% of victims with activity limitations called upon such services, compared to 32% of victims without limitations
The 2009 General Social Survey (GSS) reveals that for women ages 15 and over who had experienced abuse from an ex-spouse or ex-partner within the last five years:
·24.1% with disabilities had contacted or used a crisis centre or crisis line, compared to 11.7% without disabilities;
·49.0% with disabilities had contacted or used a counsellor or psychologist compared to 33.4% without disabilities;
·26.3% with disabilities had contacted or used a community centre, CLSC (centre local de services communautaires, in Québec) or family centre compared to 13.7% without disabilities.
It was not possible to disaggregate the data further by types of disabilities, sex, age, socio-economic characteristics or ethnic background.
The number of 2009 GSS respondents who indicated they had accessed abuse services and programs was low. Due to high coefficients of variance, the following numbers provide an indication of use (e.g. in roughly comparing between use of crisis centres versus use of women’s centres), but should not be viewed as firm indicators.
The 2009 GSS reveals that for women ages 15 and over who had experienced abuse from an ex-spouse or ex-partner within the last five years:
·13.5% with disabilities had contacted or used victim services or victim witness assistance, compared to 10.4% without disabilities.
·11.4% with disabilities had contacted or used a women’s shelter compared to 4.6% without disabilities;
·6.3% with disabilities had contacted or used a shelter or transition house compared to 5.2% without disabilities;
- Provide the available data on number of households in which persons with disabilities reside. How many of these are women headed households?
According to the PALS surveys (cited above):
·In 2001, 3.6 million Canadians living in households reported having activity limitations; this represents a disability rate of 12.4%. The disability rate increases with age for both men and women. Nevertheless, women (13.3%) are generally more likely to report disability than men (11.5%).
·Over 4.4 million Canadians, 14% of the population, reported at least one physical or mental condition limiting them in their daily activities.
·Among adults 15 years of age or older, women with disabilities related to mobility, pain or agility represented slightly more than 13% of the Canadian population, whereas men represented slightly over 9%. Not only do the rates tend to increase with age, the gender gap does as well. For example, 38.5% of women aged 75 or older stated that pain limited their daily activities, whereas only 28.8% of men in the same age group made the same statement.
·Women aged 65 and older are more likely to report mobility limitations than their male counterparts, with 37.2% of all women in Canada aged 65 and over reporting mobility limitations compared to 28.1% of men.
·Disability data from the 2006 Participation and Activity Limitation Survey (PALS) conducted by Statistics Canada is available on a per-person basis as opposed to a per-household basis. These numbers cannot be used to estimate the number of households in which persons with disabilities reside as there may be multiple people with disabilities living in one household.
In Canada, there were:
·2,393,180 women and girls with disabilities;
·73,140 girls with disabilities up to age 14;
·2,320,040 women with disabilities ages 15 and over;
·27.4% of women with disabilities lived alone, compared to 9.0% of women without disabilities;
11.0% of women with disabilities were lone parents, compared to 6.6% of women without disabilities.
- Provide any stats, info or studies on disabilities resulting from VAW.
According to a Public Health Agency of Canada study entitled “Family Violence against Women with Disabilities”, abuse can result in disability. Physical abuse can cause permanent physical damage. "Disciplining" babies by shaking them is a major cause of brain injury and death in infants. Women have cited violence by husbands as causing loss of vision, and loss of mobility.
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The 2006 PALS study (cited above) indicated the following:
·Self-rated poor or fair health status, as well as sleep disorders and use of antidepressants or sedatives, were associated with rates of violent victimization.
The “Criminal Victimization and Health: A profile of victimization among persons with activity limitations or other health problems” report (attached) indicated that 26% to 75% of women victims of spousal violence (depending on the severity of the violence) also suffer health problems.
Legislation and policies:
- Legal framework
Human rights in Canada are protected by a combination of constitutional and legislative measures. The Canadian Charter of Rights and Freedoms (the Charter) part of the Canadian Constitution is largely a civil and political rights document. Canadian legislation, policies and programs are subject to the Charter. Sections 15 and 28 of the Charter provide constitutional protection for gender equality. Section 15 ensures equal protection and equal benefit of the law for all Canadians without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability, or analogous grounds, which has been interpreted to include sexual orientation. Section 28 guarantees that all of the rights provided for in the Charter apply equally to men and women. The Charter generally governs the relationships between governments (federal, provincial and municipal) and individuals rather than between individuals. Federal and provincial human rights codes extend similar prohibitions against discrimination to the private sector. These two Charter sections apply to government action in the form of legislation, regulations, directions, policies, programmes, activities and the actions of government agents carried out under lawful authority.
Canadians are also protected by a large body of federal, provincial and territorial legislation and accompanying regulations. As noted above, all governments in Canada have adopted human rights legislation prohibiting discrimination on various grounds such as race, religion, colour, sex, age and disability in regard to employment matters, the provision of goods, services and facilities customarily available to the public, and accommodation.
Canada’s human rights commissions and tribunals are independent statutory bodies created by federal, provincial and territorial human rights legislation. They are generally mandated to mediate and investigate complaints of discrimination under the prohibited grounds found in their respective legislation. Commissions also work to prevent discrimination by undertaking human rights education and promotional activities. Other administrative bodies, such as labour relations boards, have jurisdiction to investigate particular human rights issues that arise from their specific mandates. All administrative bodies mandated to apply law must do so in a manner consistent with the Canadian Charter of Rights and Freedoms.
At the federal level, the Canadian Human Rights Act (CHRA) protects people that are lawfully present in Canada or legally entitled to return to Canada against discrimination, on a prohibited ground, including sex-based discrimination and sexual harassmentby federally regulated employers or service providers. The CHRA applies to all federal and federally-related works and industries, including federal departments, agencies and Crown corporations; the post office; chartered banks; airlines, buses and railways that travel between provinces, etc. The prohibited grounds include age, sex (including pregnancy or child birth), sexual orientation, marital and family status.
The CHRA established the Canadian Human Rights Commission (CHRC) whose mandate is to make the CHRA work for the benefit of all Canadians. The CHRA also established the Canadian Human Rights Tribunal to hold public hearings into complaints of discrimination that have been referred to it by the Commission.
Similar to this federal regime, each of the provinces and territories has their own human rights legislation that applies to employers and service providers under provincial/territorial jurisdiction. In addition, some provinces and territories have human rights commissions or tribunals to resolve and deal with complaints of discrimination by provincially regulated employers and service providers. A link to the provincial and territorial human rights agencies can be found here:
All legal frameworks that address violence against women and girls generally are available to women and girls with disabilities. In addition, there are a number of Criminal Code provisions that specifically address the needs and circumstances of victims with disabilities. These are the following:
Sexual exploitation of person with disability
153.1(1)Every person who is in a position of trust or authority towards a person with a mental or physical disability or who is a person with whom a person with a mental or physical disability is in a relationship of dependency and who, for a sexual purpose, counsels or incites that person to touch, without that person’s consent, his or her own body, the body of the person who so counsels or incites, or the body of any other person, directly or indirectly, with a part of the body or with an object, is guilty of
(a)an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b)an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Support person — witnesses under 18 or who have a disability
486.1(1)In any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who has a mental or physical disability, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
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Factors to be considered
(3)In making a determination under subsection (2), the judge or justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant.
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Testimony outside court room — witnesses under 18 or who have a disability
486.2(1)Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
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Evidence of victim or witness who has a disability
715.2(1)In any proceeding against an accused in which a victim or other witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
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Sentencing
718.2A court that imposes a sentence shall also take into consideration the following principles:
(a)a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i)evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
Moreover, section 273.1 of the Criminal Code sets out the statutory meaning of valid “consent” for the purposes the sexual assault provisions of the Code. This provision may also be relevant in cases of sexual assault of people with intellectual disabilities.
Meaning of “consent”
273.1(1)Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2)No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a)the agreement is expressed by the words or conduct of a person other than the complainant;
(b)the complainant is incapable of consenting to the activity;
(c)the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d)the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e)the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
(3)Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
In addition to the Criminal Code offences and protective orders, most provinces and territories have civil (non-criminal) domestic/family violence legislation in force.[i] Among other remedies, civil domestic violence legislation typically provides for the issuance of emergency protection orders granting the victim exclusive occupation of the home; removing the abuser respondent from the home; no contact/communication orders; and other civil restraining orders. These remedies may be of assistance to disabled victims of domestic or family violence who find it challenging to leave the family home.
Disabled Children
While general criminal offences, such as criminal neglect, assault and homicide, are applicable to violent acts against children, there are also a number of child-specific offences in the Criminal Code that may also be relevant to disabled child victims. These include failure to provide the necessaries of life, child abandonment and an extensive number of child-specific sexual offences. In addition to criminal sanctions, provincial and territorial child protection laws provide for state intervention where parents or legal guardians are unable or unwilling to meet the child’s physical, emotional and psychological needs.